Just Relationships

60 Pages Posted: 20 Nov 2014 Last revised: 29 Mar 2016

See all articles by Hanoch Dagan

Hanoch Dagan

Berkeley Law School

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: April 23, 2015


Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value. This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent already does, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitments to self-determination and substantive equality. A liberal private law — our private law — establishes frameworks of respectful interaction conducive to self-determining individuals, which are indispensable for a society where individuals recognize each other as genuinely free and equal agents.

Suggested Citation

Dagan, Hanoch and Dorfman, Avihay, Just Relationships (April 23, 2015). Columbia Law Review, Vol. 116, 2016, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2527970 or http://dx.doi.org/10.2139/ssrn.2527970

Hanoch Dagan (Contact Author)

Berkeley Law School ( email )

890 simon hall
215 Bancroft way
berkeley, CA 94720
United States

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978

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